15 November 2001
Kahn Has Got it Wrong
The National Council Against Smoking questions the judgment of Advocate Frank Kahn, Director of Public Prosecutions in the
"Unfortunately an officer of the court is sowing doubt where none exists". Says Peter Ucko, acting director of the National Council Against Smoking. "Adv. Kahn clearly does not understand the Tobacco Products Control Amendment Act and the Regulations."
Advocate Frank Kahn claims that he cannot prosecute anyone for smoking in a public place. However Adv. Kahn seems to have read the wrong section of the law in the matter of the docket opened against the Wynberg Chief Magistrate. The charge should be that the magistrate, as the person in control of the public place, did not ensure that there is no smoking in that public place.
Section 6 of Regulation 975 reads:
6. An employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place.
"The Chief Magistrate, or any person in control of any public place, has no choice in the matter", said Peter Ucko. "They have a legal obligation to ensure that there is no smoking. Failure to do so is a criminal offence and can be prosecuted".
It is also not the role of the Public Prosecutor to decide on the legality of an Act of Parliament or Regulations published in terms of such Act. That is the function of the courts. Adv. Kahn's task is to decide if a successful prosecution can be mounted. Legal opinion obtained by the DOH confirms that smoking in public is a prosecutable offence.
Advocate Patricia Lambert, Special advisor to the Minister of Health, has stated: "The preamble to the Act makes it quite clear, in plain language, that Parliament intended not only to prohibit smoking in public places but to make it an offence. Furthermore, the fact that a penalty is prescribed in relation to section 2(1)(a) is therefore confirmation that the prohibited act of smoking in a public place is defined as a criminal offence".
"The Department of Health is well aware that the wording of the law as it currently stands appears to be causing concern. However the department has sought legal opinion, both from state law advisors and from independent counsel who concur that the law is sound as it stands and that smoking in a public place is a prosecutable office", added Adv. Lambert
Smoking in public is an offence and it is the responsibility of the courts to decide the extent of the punishment in terms of the constitution and legislation. Adv. Kahn is inviting people to break the law with impunity and thereby encouraging disrespect for the law.
"I have a dream... A beautiful world without cigarettes!" - Juan Morrell, school student